The latest reforms originate from the Aarhus Convention (the “Convention”), which aims to protect the environment by promoting the accountability of governments in their interactions with the public. Article 9(4) of the Convention states that as part of the access to justice requirements, review procedures that allow the public to challenge decisions and actions of governments must be “fair, equitable, timely and not prohibitively expensive”.
The Aarhus Convention Compliance Committee’s decision in Port of Tyne Compliant 2010 found that the UK courts’ discretion in determining costs and the granting of protective cost orders (PCOs) had led to a high level of uncertainty and therefore that the UK was in breach of it’s art 9(4) obligations.
The Ministry of Justice subsequently opened a consultation into costs capping for cases that invoked the Convention. As a result the Civil Procedure (Amendment) Rules 2013 were made and came into force on 1 April 2013. The new rules state that claimants whose cases fall within the Convention will automatically have their liability for defendants’ costs capped at £5,000 if they are an individual and £10,000 if they are an organisation. The defendant’s liability for a claimant’s costs will be capped at £35,000. The costs protection will apply from the time the claim is issued. A defendant may challenge whether a claim falls within the Convention, but there will be no mechanism to challenge the level of the cap. Claimants must still bear the risk relating to their own costs.
As the rules are aimed at ensuring court procedures are accessible in Convention cases, there is concern that there will be an increase in JR claims that are brought on grounds falling within the scope of the Convention.
Notwithstanding such protection, the requirement to apply for leave to apply for JR will continue to act as a constraint to weak claims being brought.
The cap on the availability to recover costs may also affect the way public bodies granting planning permissions with an environmental element manage the defence of JR claims, where there is an emphasis on reducing public spending. This may put added pressure on the recipient of the planning permission to participate in the proceedings, as a directly affected party, to ensure that both sides of the argument are properly aired.
The government is considering further ways to stem the amount of JR applications. Among proposals is a reduction to the time limit of bringing a planning JR from three months to six weeks. Also, the 2013 Budget contained the government’s intention to develop further measures to streamline the planning JR process such as dropping the pre-action protocol requirements and to publish reduced planning guidance to provide simplicity and clarity.